Allahabad High Court
Prof. Chandra Shekhar Upadhyay And 3 ... vs State Of U.P. And 3 Others on 5 March, 2020
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 34 Case :- CRIMINAL MISC. WRIT PETITION No. - 33609 of 2018 Petitioner :- Prof. Chandra Shekhar Upadhyay And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Aishwarya Pratap Singh,Girijesh Kumar Gupta,Gopal Swarup Chaturvedi,Ratnesh Kumar Shukla Counsel for Respondent :- G.A.,Anoop Trivedi,Anupam Kumar Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Gopal Swarup Chaturvedi, learned Senior Counsel assisted by Sri Aishwarya Pratap Singh, learned counsel for petitioners, Sri T.P. Singh, learned Senior Counsel assisted by Sri Anupam Kumar, learned counsel for respondent-4 and learned AGA for respondents-1, 2 and 3.
2. This writ petition under Article 226 of Constitution of India has been filed by petitioners, Professor Chandra Shekhar Upadhyay, Professor Sanjay Mittal, Professor Rajiv Shekhar and Professor Ishan Sharma all working in Indian Institute of Technology (hereinafter referred to as "IIT") with a prayer to issue a writ of certiorari to quash First Information Report (hereinafter referred to as "FIR") registered as Case Crime No.1283 of 2018, under Sections 500 IPC, Section 66D of Information Technology Act, 2000 (hereinafter referred to as "Act, 2000") amended by Information Technology (Amendment) Act, 2008 (hereinafter referred to as "Amendment Act, 2008") and Section 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended in 2015 (hereinafter referred to as "Act, 1989"), at Police Station Kalyanpur, District Kanpur Nagar.
3. Sri Gopal Swarup Chaturvedi, learned Senior Counsel contended that even if allegations contained in FIR are taken to be true, offences under aforesaid sections are not made out and, therefore, entire proceedings against petitioners pursuant to aforesaid FIR, are wholly illegal and amounts to gross abuse of process of law.
4. Thus, we have to consider "whether offences under the provisions wherein FIR has been registered are made out or not". For this purpose, it will be appropriate to reproduce the contents of FIR as under:-
^^lsok esa] Jheku th Fkkuk izHkkjh egksn; Fkkuk&dY;k.kiqj dkuiqj uxj mRrj izns'k 208016 fo"k;&lqcze.;e vflLVsaV izksQslj ,;jksLisl foHkkx vkbZ vkbZ Vh dkuiqj dks cnuke djus ds fy, vKkr O;fDr }kjk QthZ nLrkost lfgr rkjh[k 15-10-2018 ds bZ&esy ds lEcU/k esa lwpuk rFkk ,Q vkbZ vkj ntZ djus ds fuosnu gsrq izkFkZuk i= egksn; 1& esjk uke lqcze.;e lnjsyk gS ,oa esjh fu;qfDr vkbZ vkbZ Vh dkuiqj ds ,;jksLisl foHkkx esa rkjh[k 28 fnlEcj 2017 dh x;hA 2& blds iwoZ tqykbZ 2017 es vkbZ vkbZ Vh dkuiqj us lHkh foHkkxksa ds fy, ,llh@,lVh@vkschlh@ihMCY;wMh Jsf.k;ksa ls lacaf/kr ladk; dh HkrhZ ds fy, fo'ks"k vfHk;ku dh foKfIr dh vkSj eSaus bl vfHk;ku ds rgr vkosnu fd;k FkkA eSaus vkbZ vkbZ Vh dkuiqj ls viuk ijkLukrd vkSj ih,pMh Hkh iwjk fd;k gSA 3& vkbZ vkbZ Vh dkuiqj dh HkrhZ izfdz;k ds ,d fgLls ds :i esa] eq>s vDVqcj 2017 esa ,;jksLisl bathfu;fjax foHkkx esa laxks"Bh ds fy, cqyk;k x;kA bl laxks"Bh ds nkSjku] Mk0 bZ'kku 'kekZ ¼dsfedy bathfu;fjax foHkkx½ us muds migkl ds nkSjku ,d lewg dk usr`Ro fd;k vkSj o [kqysvke esjs ¼Mk0 lSnjyk½ ds ckjs esa fVIi.kh djrs jgsA mUgksaus vius oDrO;ksa ds ek/;e ls eq>s fuEu cqf) dk crk;k] eSaus vius vki dks Hk;Hkhr vkSj viekfur eglwl fd;k ysfdu fQj Hkh eSus muds lokyksa dk tckc nsus dh dksf'k'k dh D;ksafd esjs ikl fo"k; ij fo'ks"kK+rk vkSj Kku Fkk vkSj ftudk eSaus jk"V~h; @ varjk"V~h; eapks ij izLrqrhdj.k Hkh fd;k FkkA 4& Mk bZ'kku 'kekZ ds uhpk fn[kkus dh dksf'k'k ds ckotwn eq>s foHkkx ,oa laLFkku us esjh mEehnokjh dh flQkfj'k dhA mlds ckn bl lEcU/k esa 26 tuojh 2017 dks ckgjh fo'ks"kKksa dh ,d lfefr us tkap dh vkSj esjh fu;qfDr ds fy, flQkfj'k dhA cksMZ ds v/;{k }kjk vuqeksnu ds ckn eq>s fu;qfDr i= 28 fnlECj 2017 dks tkjh fd;k x;kA eSaus 1 tuojh 2018 dks viuk inHkkj laaHkkykA 5& fnukad 04-01-2018 dks foHkkx es 'kkfey gksus ds rqjar ckn] foHkkx dh ,d laxks"Bh esa esjs f[kykQ Jh lat; feRry us O;aX;kRed vkSj viekutud fVIi.kh dh] fd u, ladk; ds 'kkfey gksus ds dkj.k foHkkx ds ekudksa esa deh vk jgh gSA blds ckn 9-01-2018 dks Mk lat; feRry us eq>s vkSj Mk jk?kosUnz dks NksMdj ,;jksLisl bathfu;fjax foHkkx ds lHkh ladk; lnL;ksa dks bZesy Hkstk] vkSj mUgksaus 10-10-2018 dks ,d ladk; cSBd cqykbZA 6& cSBd ds nkSjku ,jksLis'k bathfu;fjax foHkkx ds vf/kdka'k ladk; lnL; mifLFkr Fks tgkW esjh fu;qfDr ds laca/k esa rhu ?kaVs ls vf/kd le; rd ,d ppkZ pyhA ;g irk pyk gS fd cSBd ds nkSjku] Mk0 lat; feRry] Mk0 pUnz'ks[kj mik/;k; vkSj Mk0 ncksike nkl] ,jksLisl bathfu;fjx foHkkx ds lHkh ofj"B izksQsljksa us twfu;j izksQslj dks twfu;j izksQsljksa dks ;g le>kus ds iz;kl fd, fd esjh fu;qfDr bl foHkkx ds fy, vuqi;qDr gS rFkk eSa ekufld :i ls Hkh v;ksX; gSwA 7& bl lcds nkSjku Mk0 lh-,l- mik/;k; us esjs 'kS{kf.kd izek.k i=ksa dks xyr rjhds ls izLrqr djus ds fy, ,d vfHk;ku 'kq: fd;k] ftlesa ;g crk;k x;k fd eSa ,d ladk; ds :i esa fu;qDr fd, tkus ds fy, mi;qDr ugha gwWaA 8& bu lc ckrksa ls ijs'kku gksdj eSaus 12-01-2018 dks ,d bZ esy funs'kd egksn; dks vkSj vius foHkkxk/;{k dks dkih ¼CC½ esa Hkstrs gq, viuh O;Fkk crkbZ dh eSa ,oa esjk ifjokj bl nq"izpkj ls ekufld :i ls mRihMu dk f'kdkj gq, gSa vkSj ;g lc blfy, gS dh eSa vuqlwfpr tkfr leqnk; ls lacaf/kr gwWaA 9& esjs izkFkZuk i= dk laKku ysrs rq, ,oa cksMZ vkWQ xouZj (BOG) ds ijke'kZ ij funsZ'kd egksn; us ,d desVh (Fact Finding Committee) dk xBu fd;k ftls fuEufyf[kr rF; lkeus ykus dk funsZ'k fn;k x;kA ¼d½ ^^esjs MkW lSnjyk** izfr fd;k x;k HksnHkko ,oa mRihMu dks LFkkfir djuk ¼[k½ lgh ik,a tkus ij bu O;fDR;ksa dh igpku o muds }kjk mBk;s x;s dneksa dks LFkkfir djukA 10& Mk0 mik/;k; }kjk nq"izsfjr izpkj vHkh Fkek Hkh ugha Fkk dh 01-02-2018 dks Mk0 jktho 'ksdj us lHkh lsusVjksa dks ,d bZ&esy izsf"kr fd;k ftlesa fy[kk Fkk fd nl lky igys dh ?kVuk fQj ls ?kfVr gqbZ gS ftlus 'kSf{kd uhao dks iwjh rjg ls fgyk fn;k gS mUgksaus vkxs fy[kk dh vfHk"kki us fQj ls izHkkfor fd;k gS ;gka bldk mYys[k djuk pkgwaxk dh lsusVjksa esa dsoy vkbZ vkbZ Vh dkuiqj ds gh ugha oju ckgj ds f'k{k.k laLFkkuksa ds iz/;kid Hkh vkrs gSaA vkSj Mk0 jktho 'ks[kj us mu lHkh dks bl nq"izpkj esa ?klhVus dh dksf'k'k dh gSA 11& Mk0 jktho 'ksk[kj dk mDr bZ&esy esjs laKku esa vk;k vkSj blls eSa vkSj esjk ifjokj O;fFkr gq,A fnukad 01-02-2018 dks eSaus funsZ'kd egksn; dks i= fy[kdj bl ?kVuk dks jk"V~h; vk;ksx vuqlwfpr tkfr esa ys tkus dh vuqefr ekaxhA 12& desVh ¼QSDV QkbfMax desVh½ us viuh fjiksVZ funsZ'kd egksn; dks 08 ekpZ 2018 dks lkSaihA tkap esa desVh us esjh fu;qDr ij lgh ik;k vksj Mk0 bZ'kku] Mk0 lat; feRry] Mk0 jktho 'ks[kj vkSj Mk0 pUnz'ks[kj mik/;k; dks muds }kjk fd;s x, esjs mRihMu ds fy, nks"kh ik;kA desVh us ,l lh @ ,l Vh ds rgr dk;Zokgh dh Hkh flQkfj'k dhA 13& mDr ?kVuk dk laKku ysrs gq, jk"V~h; vk;ksx vuqlwfpr tkfr ¼,l lh ,l lh½ us 13 ekpZ 2018 dks funs'kd egksn; dks ,d uksfVl tkjh fd;k vkSj mUgsa O;fDrxr rkSj ij f'kdk;rdrkZ o foHkkxk/;{k ds lkFk vk;ksx esa 10 vizSy 2018 dsk lEiUu gqbZA ehfVax esa laiw.kZ ?kVuk dh xaHkhjrk dk laKku ysrs gq, ,d foHkkxh; tkap mu pkjksa izk/;kidksa dks f[kykQ 'kq: djus dh laLrqfr dh x;hA 15& 10 vizSy 2018 dks ekuuh; vk;ksx ds v/;{k izk/;kid Mk0 jke 'kadj dFksfj;k th dh v/;{krk esa lquokbZ gqbZ vkSj mlh fnu vk;ksx us viuk vkns'k ns fn;k ftldks laLFkku dks 13 vizSy 2018 dks ns fn;k x;kA 16& mlds i'pkr pkjksa ladk; lnL; vFkkZr Mk0 lat; feRry] Mk0 pUnz'ksk[kj mik/;k; Mk0 bZ'kku 'kekZ rFkk Mk0 jktho 'ks[kj bykgkckn gkbZdksVZ x, vkSj dksVZ us pkjks dks jk"V~h; vk;ksx vuqlwfpr tkfr ds fn'kk funsZ'k ds fo:) ^^LVs** LFkxu ns fn;kA 17& LFkxu ds i'pkr Hkh bldh vuqefr nh x;h fd laLFkku viuh rjQ ls bu fo"k; ij tkap djk ldsA ekuuh; tfLVl fln~nhdh ^^vodk'k izkIr** dks laLFkku us crkSj tkap vf/kdkjh 05 bZ 2018 dks vkns'k la[;k IITK/DC-125/LC-43 ds rgr tkap dh ftEesnkjh lkSaihA ,d vU; izfrf"Br ladk; ^^ladk; ^^vodk'k izkIr** lnL; dks Hkh tfLVl Jh fln~nhdh ds lgk;d ds rkSj ij fu;qDr fd;k x;kA 18& ekuuh; tfLVl Jh fln~nhdh us viuh tkap fjiksVZ ch vks th dks layXud ds :i esa 17-08-2018 dks lkSaihA fjiksVZ ds eq[; :i ls fuEufyf[kr rF;ksa dks LFkkfir fd;k x;kA ¼,½ esjs vkbZ vkbZ Vh esa fu;qfDr dh izfdz;k dks iw.kZ :i ls lgh ik;k x;kA ¼ch½ tkap esa pkjksa ladk; lnL; vFkkZr Mk- lat; feRry] Mk0 pUnz'ks[kj mik/;k; Mk0 bZ'kku 'kekZ rFkk Mk0 jktho 'ks[kj dks Conduct Rule (Schedule-B) rule 3 (a) and (b) Under Status 13 (17) of IIT status ds vUrxZr xaHkhj nqO;Zogkj dk nks"kh ik;k x;kA ¼lh½ lHkh pkjksa ladk; lnL; MkW0 lat; feRry] Mk0 pUnz'ks[kj mik/;k; Mk0 bZ'kku 'kekZ rFkk Mk0 jktho 'ks[kj dks vuqlwfpr tkfr ls lEcfU/kr O;fDr dk lsD'ku 3 vkQ , ,DV ua0&33 vkQ 1989 esa lkoZtfud rkSj ij migkl djus o izrkfMr djus dk nks"kh ik;k x;kA 19& fnukad 06-09-2018 dks ch vks th dh ehfVax esa lquus esa ;g vk;k fd nks ladk; izfrfuf/k;ksa] Mk0 nsoksie nkl o MkW0 ,e,y,u jko ds ncko ds dkj.k cksMZ us dsoy lhlh,l mYya?ku dks ekuk rFkk lsD'ku 3 vkQ , ,DV ua0 33 vkQ 1989 ^^izsosU'ku vkQ ,V~ksflVht ,DV** ds vUrxZr gksus okys vijk/k dks udkj fn;kA 20& bl chp jk"V~h; vuqlwfpr tkfr us Mk0 lnjsyk Mk0 , ds ?kks"k] vkbZ vkbZ Vh dkuiqj ds funsZ'kd] egksn; us ekuuh; tfLVl Jh fln~nhdh ds fjiksVZ ds lanHkZ esa fnukad 10-09-2018 dks viuh ubZ fnYyh ds vkfQl esa cqyk;kA ogka pyh cSBd esa ch vks th ¼vkbZ vkbZ Vh ds½ esa fy, x;s fu.kZ; ij rFkk lsD'ku 3 vkQ , ,DV ua0 33 vkQ 1989 ^^izsosU'ku vkQ ,V~ksflVht ,DV** ds vUrxZr gksus okys vijk/k dks udkjus ij xaHkhj vlarks"k izdV fd;k x;k ,oa vk;ksx us iqu% funsZ'k fn;sA 21& bl funsZ'k ds foi{k esa pkjksa vkjksfi;ksa us iqu% 26-09-2018 dks fjV fiVh'ku 32585@2018 ds rgr bykgkckn gkbZdksVZ ls LVs ys fy;kA 22& chvksth lnL;ksa dh ehfVax ls igys ch vks th ij izHkko Mkyus gsrq fnukad 15-10-2018 dks ,d vKkr O;fDr ds }kjk [email protected] bZesy vkbZ Mh ls ,d esy cM+h la[;k esa ofj"B la[;k;sa lnL;ksa esa izlkfjr djds ;g fn[kkus dh dksf'k'k dh xbZ] fd eSaus ¼Mk0 lnjsyk½ viuh ih-,p-Mh- nwljs ls udy djds iwjh dh gSA bl bZ esy esa ;g Hkh nkok fd;k x;k fd esjh Mk0 lnjsyk dh] ih,pMh fMxzh okil ysus pkfg,A ¼ftlls esjh ukSdjh pyh tk,xh½ ;g bZ esy vkbZ Mh vc miyC/k ugha gSA blls yxrk gS fd bl vkbZMh dk fuekZ.k flQZ eq>s uhpk fn[kkus ds fy, fd;k x;k FkkA ;g lc dqN ;g lkfcr djus ds fy, fd;k x;k fd eSa vuqlwfpr tkfr dk gwWa ,oa esjh ckSf)d Lrj vkbZ vkbZ Vh esa i<+kus yk;d ugha gSA blls esjs LokfHkeku dks o lkekftd lEeku dks xaaHkhj {kfr igqWaph gS vkSj eq>s xaHkhj ekufld volkn >syuk iM+k gSA eq>s lansg gS fd ;g bZ esy mu pkjksa ladk; lnL;ksa dks cpkus ds mn~ns'; ls vKkr O;fDr }kjk muds dgus ls Qsyk;k x;k gS] tks ekuuh; tfLVl Jh fln~nhdh th dh tkap esa ,d vuqlwfpr tkfr ds O;fDr dks ^^lsD'ku 3 ,DV ua0 33 vkQ 1989 ^^izosU'ku vkQ ,V~ksflVht ,DV** ds rgr nks"kh ik, x;sA ml vKkr bZ esy dh Nk;kizfr ekuuh; tfLVl Jh fln~nhdh th dh tkap fjiksVZ dh dkih ,oa bZ esy [email protected] vdkmaV ds ckn gksus dh lwpuk ,oa leLr rF; esjs ikl miyO/k gS A tkap ds nkSjku eSa ;s lHkh rF; tkap vf/kdkjh dks miyc/k djk nwaxkA Jheku~ th ls fuosnu gS fd QthZ rF;ksa ij vk/kkfjr bZ&esy ,oa lEcfU/kr O;fDr;ksa ds f[kykQ eqdnek ntZ djds vko';d dk;Zokgh djus dh d`ik djsaA** Sir, 1-My name is Subramanyam Sadrela and my appointment was made in the Aerospace Department, IIT Kanpur on 28th December, 2017. 2- Before this, the IIT Kanpur had advertised the special drive for recruitment related to SC/ST/OBC/PWD category faculties in all departments, and I had applied under the drive. I have done my post graduation and PhD from IIT Kanpur. 3-As a process of the recruitment by IIT Kanpur, I was called in October, 2017 to participate in a seminar at the Aerospace Engineering Department. During the seminar, Dr. Ishan Sharma, Chemical Engineering Department, made comment against me, and while leading a group, he kept making comments against me. Through statements, he declared me a person of low intelligence; I felt frightened and disgraced. Despite this, I tried my best to give replies to the questions, because I had knowledge and speciality on the subject, of which I had given my presentation at national and international level. 4-Despite attempt of Dr. Ishan Sharma to show me in poor light, the Department and the Institution had recommended my candidature. Thereafter, a committee of the external specialists conducted, in this respect, an examination on 26th January, 2017 and recommended for my appointment. After recommendation by Chairman of the Board, appointment letter was issued to me on 28th December, 2017. I took charge on 1st January, 2018. 5-On 04.01.2018, immediately after I joined the department, Sri Sanjay Mittal made sarcastic and derogatory remarks against me in a seminar that as the result of joining of new faculty, the standards of the department are not maintained properly. Thereafter on 09.01.2018 Dr. Sanjay Mittal sent an e-mail to all faculty members of the Department of Aerospace Engineering except me and Dr. Raghavendra, and he convened a meeting of faculty. 6- Maximum faculty members of the Department of Aerospace Engineering were present during the meeting where discussion in respect of my appointment held for more than three hours. During the meeting, it has been found that Dr. Sanjay Mittal, Dr. Chandrashekar and Dr. Dabopam Das, all the senior professors of the Department of Aerospace Engineering, tried to convenience the junior professors to the effect that my appointment is not suitable for this department and I am mentally ineligible also. 7- During it all, Dr. C.S. Upadhaya initiated a movement to wrongly present my educational certificates wherein it has been stated that I am not eligible to be appointed as Faculty. 8-Being vexed with these things, on 12.1.2018 I intimated my agony to the Director and Head of Department through an e-mail that I and my family have been subject to mental torture by this propaganda and this is all because I belong to the Scheduled Caste Community. 9-Taking cognizance of my application and on the advice of the Board of Governor (BOG), the Director constituted a committee (Fact Finding Committee) that was directed to bring out the following facts - (a) to establish discrimination and torture against "me i.e. Dr. Saidrala" (b) on finding it to be correct, identification of these persons and to establish steps taken by them. 10- Hardly had the abetted propaganda by Dr. Upadhyaya not stopped still when on 01.02.2018 Dr. Rajiv Shekar sent an e-mail to all the Senators wherein it was written that incident that occurred 10 years before has reoccurred which has completely jolted the educational foundation. He further wrote that curse has again effected. I would like to mention here that not only Professors of IIT Kanpur, but also those of other educational institutions attend Senators. Dr. Rajiv Shekhar has tried to drag all those in this propaganda. 11- I came to know about Dr. Rajeev Shekhar's aforesaid e-mail and due to this, my family and I became upset. On 1.2.2018, I requested permission to take this incident to National SC/ST Commission through a written-application addressing to the Director. 12- The committee (fact Finding Committee) submitted its report before the Director on 8.3.2018. In the enquiry, the committee found me right on my appointment and held Dr. Ishan, Dr. Sanjay Mittal, Dr. Rajeev Shekhar and Dr. Chandrashekhar Upadhyay guilty for my harassment committed by them. The committee also recommended for action under SC/ST Act. 13- Taking cognizance of the aforesaid incident, the National SC/ST Commission issued a notice to the Director on 13.03.2018 and recommended him individually to initiate a departmental enquiry against those four professors in the meeting with the complainant and head of the department held in the commission on 10.4.2018 by taking cognizance of the gravity of the whole incident. 15-10.4.2018, hearing took place in chairmanship of hon'ble chairman of the commission Dr. Ram Shankar Katheria and on the same day, the commission passed its order which was handed over to the institution on 13.4. 2018. 16-Thereafter, the four faculty members namely Dr. Sanjay Mittal, Dr. Chandrashekhar Upadhyay, Dr. Ishan Sharma and Dr. Rajeev Shekhar approached Allahabad High Court and the Court passed stay order against the guidelines of the National Commission for Scheduled Castes. 17- Even after the stay order, it was allowed that the institution itself may get the enquiry conducted on these subjects. The charge to conduct enquiry was handed over to the Hon'ble Justice Siddiqui as an Enquiry Officer through order No. IITK/DC-125/LC-43 on 05 E. 2018. One respected faculty member (retired) was also appointed as an Assistant to Justice Shri Siddiqui. 18-On17.08.2018, Hon'ble Justice Shri Siddiqui submitted his enquiry report BOG as an enclosure. In the report, the following facts were mainly established. (A) The procedure of my appointment in IIT was found absolutely correct. (B) The four faculty members namely Dr. Sanjay Mittal, Dr. Chandrashekhar Upadhyay, Dr. Ishan Sharma and Dr. Rajeev Shekhar were found guilty of serious misconduct under Conduct Rule (Schedule-B) rule 3 (a) and (b) Under Status 13 (17) of IIT Status. (C) The four faculty members namely Dr. Sanjay Mittal, Dr. Chandrashekhar Upadhyay, Dr. Ishan Sharma and Dr. Rajeev Shekhar were found guilty to publicly mock at and harass the person related to the Scheduled Caste under Section 3 of A Act No.-33 of 1989. 19-It has been learnt from the B.O.G meeting held on 06.09.2018 that due to pressure from two faculty representatives namely Dr. Devopam Das and Dr. M.L.N Rao, only CCS violation has been accepted while offence under Sec. 3 of A Act No. 33 of 1989 " Prevention of atrocities Act" has been rejected. 20- In the meantime, Dr. Sadrela, De. A.K. Ghosh, IIT Kanpur Director were summoned by National Scheduled Caste Commission on 10.9.2018 in context of report by Hon'ble Justice Siddhiqui At their New Delhi Office. In the meeting held there, serious resentment was expressed on the decision taken in B.O.G.(IITK) as well as on the negation of offence made under Sec. 3 of A Act No. 33 of 1989 "Prevention of Atrocities Act" and commission again passed the directions. 21-All four accused persons again got these directions stayed on 26.09.2018 vide Writ Petition 32585/2018. 22-Prior to the meeting of the members of BOG, in order to influence the BOG, one mail dt:15.10.2018, by some unknown person, through the e-mail ID - [email protected] was sent to the members in a large numbers, to show that I (Dr. Sadrela) completed my Ph.D by copying others. Further, it has also been claimed in the said e-mail that this degree of mine (Dr. Sadrela) of PhD should be withdrawn (and which will cause me loose my job). This mail ID is now not functional. It shows that this e-mail was created only in order to humiliate me. It has all been done in order to establish that I belong to the scheduled caste and that my mental level is not adequate enough to teach in I.I.T. It has hurt my self-respect and caused damage to my position in society, and I had to go through excessive mental depression. I doubt that this e-mail has been sent/spread by some unknown person under the direction of those four faculty members and in order to protect them, who were found guilty by Hon'ble Justice Mr. Siddiqui u/s 3 Act-33 of 1989 'Prevention of Atrocities Act'. I have a copy of that anonymous mail, a copy of the inquiry report by Hon'ble Justice Siddiqui and the information after the e-mail account [email protected] (?) and all other facts. I will provide all the relevant facts to the inquiry officer during the inquiry.
You are hereby requested that a case be lodged against the concerned persons on the basis of the e-mail containing false information, and necessary action be taken up."
(English Translation by Court)
5. A perusal of aforesaid report shows that Informant Dr. Subramanyam Sadrela stated that a Special Recruitment Drive was conducted in the Aerospace Department of IIT Kanpur for making recruitment of SC/ST, OBC and other reserved category candidates. Informant had completed his Post Graduation and Ph.D., from IIT, Kanpur itself. He applied for appointment in Aerospace Department. He was called in October, 2017 for interview. During interview, Dr.Ishan Sharma, Mechanical Engineering Department, IIT Kanpur led group and made comments and taunts upon Informant stating that he is a person of low IQ. Informant fell frightened and dishonored, still made attempt to reply the questions put to him by Dr.Ishan Sharma since he had good knowledge of subject as he had represented at National and International Forum. Despite Dr. Ishan Sharma's comment, Department/Institution recommended Informant's candidature for appointment. On 26.12.2017, an Outside Expert examined Informant and recommended his appointment. Consequently, Chairman of Board approved candidature of Informant and letter of appointment was issued to him on 28.12.2017. Informant joined on 01.01.2018. Thereafter, in a meeting, Dr. Sanjay Mittal made comments in a taunting manner and ridiculed Informant stating that due to engagement of new faculty member, Department's standards have gone down. On 09.01.2018, Dr. Sanjay Mittal sent an E-mail to all faculty members in Aerospace Engineering Department except Informant and Dr. Raghvendra and called a meeting on 10.01.2018. In the said meeting, matter of appointment of Informant was discussed for about three hours and Dr. Sanjay Mittal, Dr. Chandra Shekhar Upadhyay and Dr.Dabopam Das all tried to explain to Junior Professors that appointment of Informant in the Department of Aerospace was not justified and he was not suitable. Dr. Chandra Shekhar Upadhyay also presented Informant's testimonials in a wrongful manner and tried to explain that he was not suitable for appointment as Faculty Member. Informant got disturbed and expressed his predicament and embarrassment to Head of the Department through an E-mail and said that he and his family has suffered mental exploitation due to malicious conversation and it is all since Informant belongs to Scheduled Caste community.
6. Taking note of the complaint, on the advice of Board of Governors, a Fact Finding Committee was constituted which was entrusted to find out alleged discrimination, and harassment of petitioner; and identification of guilty persons and also to find out misconduct, if any committed and if so, by whom.
7. On 01.02.2018, Dr. Rajeev Shekhar sent an E-mail stating that incident occurred 10 years back has happened again. Rumors and false conversation by Dr. Rajeev Shekhar caused mental disturbance to Informant and his family. Again, Informant sent a letter to Director and seeks permission to raise the matter in National Commission of Scheduled Castes (hereinafter referred to as "NCSC"). Fact Finding Committee submitted report on 08.03.2018 to Director and found appointment of Informant to be correct; that Dr. Ishan Sharma, Dr. Sanjay Mittal, Dr. Rajeev Shekhar and Dr. Chandra Shekhar Upadhyay, guilty to suppression of Informant, and recommended action against said persons under SC/ST Act. Taking note of said incident, NCSC also issued a notice on 13.03.2018 and summoned them in Commission on 10.04.2018. On the issue of Informant's exploitation, a meeting was held by Board of Directors on 19.03.2018 wherein Departmental enquiry was recommended against four erring Faculty Members.
8. NCSC heard the matter and passed an order against four Faculty Members who challenged the same before Court and obtained stay order.
9. A retired Judge was appointed as Enquiry Officer who submitted report dated 17.08.2018 holding appointment of Informant, correct and prima facie holding four Faculty Members of guilty of violating Rule 3(a) and (b) of Conduct Rules (Schedule-B) framed under the Statute 13(17) of IIT, Kanpur Statute and also committing offence under Section 3 of Act No.33 of 1989. However, in the Board of Governor's meeting, two Faculty Members impressed upon that four Faculty Members were guilty of violating Conduct Rules only and not offence under Act, 1989. In the meantime, an unknown person forwarded an E-mail wherein it was attempted to show that Informant has completed Doctorate by copying some others thesis and it should be withdrawn. It appears that said E-mail was forwarded just to belittle Informant and this shows that Informant being Members of Scheduled Castes, is not upto mark to be a Faculty Member of IIT, Kanpur. This all has caused serious damage to self-respect and social status of Informant and has caused serious mental torture to Informant.
10. Having given anxious thoughts, we find that basic grievance of Informant is that he has not been given a good treatment by petitioners. They have taunted, commented and ridiculed him time to time. He has not stated anywhere that whatever has been done by petitioners is after knowing it that he is a member of Scheduled Caste, to insult or intimidate or humiliate as such but what he has said that certain acts and omissions have been done by petitioners and according to Informant, same has been done as Informant is a member of Scheduled Caste.
11. In order to find out "whether offence under the provisions wherein FIR has been registered are made out or not", we first proceed to consider "whether offence under Section 3(2)(va) of Act, 1989 has been made out or not".
12. Section 3(2)(va) of Act, 1989 is reproduced as under:-
"3(2)(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine."
13. The gravamen of Section 3(2)(va) of Act, 1989 is pre information and knowledge of accused that person being offended is a member of a Scheduled Castes and Scheduled Tribes or property concern belongs to such member. Therefore, it is not sufficient that offended person is a member of scheduled castes or property belongs to a member is a scheduled castes but knowledge of offender that such person is a Scheduled Castes or Scheduled Tribes is the basic ingredient to attract Section 3(2)(va) of Act, 1989.
14. In the entire complaint we have reproduced above, we do not find even a whisper that accused-petitioners were knowing that Informant/Complainant is a member of Scheduled Castes and with this knowledge, they committed offence specified in the Schedule.
15. Thus, the basic ingredient to attract Section 3(2)(va) of Act, 1989 is not present, hence, it cannot be said that aforesaid provision is attracted even if whatever stated in FIR is treated to be correct. We further required counsel for respondent-4 to show as to which offence mentioned in the Schedule of Act, 1989 has been committed by offenders i.e. accused-petitioners but despite repeated query, Sri T.P.Singh, learned Senior Counsel appearing for respondent-4 could not referred to any section of IPC mentioned in the Schedule of Act, 1989 which is said to have attracted in the case in hand. He said that it is Section 500 IPC which is attracted but we find that Section 500 IPC is not one of the provisions mentioned in Schedule of Act, 1989, therefore, Section 3(2)(va) of Act, 1989 is not at all attracted and it cannot be said that even if what is alleged in FIR is taken to be true, any offence under Section 3(2)(va) of Act, 1989 is made out.
16. Now, we come to Section 500 IPC. Section 500 IPC is an offence of "defamation" as defined in Section 499 IPC.
17. Section 499 IPC provides as to what is "defamation" and reads as under:-
"499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person." (Emphasis added)
18. There are four Explanations and ten Exceptions in Section 499 IPC which I have not quoted.
19. Explanations covers some shades of the words, spoken or intended to be read etc., which may amount to "defamation" while exceptions give the illustrations of what will not constitute "defamation". To be more particular, Explanations-1, 2 and 3 provide certain aspects which would amount to defamation and Explanation-4 explains the words "will harm the reputation of such person" which is a necessary and integral part of Section 499 IPC so as to constitute defamation. Offence of defamation, therefore, consists of three essential ingredients. (i) making or publishing an imputation concerning a person; (ii) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations; and, (iii) the said imputation must have been made with the intention of harming or with the knowledge or having reason to believe that it will harm the reputation of the person concerned.
20. Thus, to bring an offence under Section 500 IPC, prosecution has to show, (a) that an imputation was made consisting of words spoken or written or intended to be read or made by signs or by visible representations; (b) that the imputation concerned the complainant i.e. the person defamed and the person who has come forward qua complainant alleging that defamation concerned him, are identical persons; (c) that the accused made or published the incriminating imputation; and, (d) that the intention behind making and publishing words causing harm to the reputation of such person.
21. Offence punishable under Section 500 IPC, therefore, is to protect a fundamental right of a person i.e. 'reputation' which is part of right to enjoyment of life and liberty and property having an ancient origin as explained by Supreme Court in Smt. Kiran Bedi v. Committee of Inquiry and another 1989 (1) SCC 494 wherein Court reproduced the observations from D.F. Marion v. Davis 10 55 ALR 171 as under:-
"The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. " (emphasis added)
22. In Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni and Others (1983) 1 SCC 124, Court said that "right to reputation" is a facet of right to life of a citizen under Article 21 of Constitution.
23. In Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal 2012 (6) SCALE 190, Court dealt with the aspect of "reputation" though in a different context, and said:-
"........reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity. " (emphasis added)
24. In Kishore Samrite Vs. State of U.P. and Others 2013 (2) SCC 398, Court said:-
"The term 'person' includes not only the physical body and members but also every bodily sense and personal attribute among which is the reputation a man has acquired. Reputation can also be defined to be good name, the credit, honour or character which is derived from a favourable public opinion or esteem, and character by report. The right to enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society. 'Reputation' is an element of personal security and is protected by Constitution equally with the right to enjoyment of life, liberty and property. Although 'character' and 'reputation' are often used synonymously, but these terms are distinguishable. 'Character' is what a man is and 'reputation' is what he is supposed to be in what people say he is. 'Character' depends on attributes possessed and 'reputation' on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present. "
(emphasis added)
25. Offence under Section 500 IPC, therefore, covers a very important aspect involving a person's right to life and liberty, hence when a complaint is made that a person's reputation has been jeopardized, and Magistrate, if has taken cognizance in the matter by initiating proceedings, Court under Section 482 Cr.P.C. or in writ jurisdiction under Article 226 of Constitution should not interfere lightly unless a clear case of abuse of process of law is made out. I, therefore, would examine the matter in question, whether a case of abuse of process has been made out or not.
26. Comments or taunting of a person in respect of his specialization of knowledge in a close door meeting i.e. during the course of interview cannot be said to be a publication of something which affects the reputation of any person and such observations or comments, in our view, will not attract Section 500 IPC. This situation, if accepted, may result in everyday complaints against the member of interview board or the persons performing judicial or quasi judicial functions whenever they make any observation with regard to understanding or knowledge of another person.
27. So far as publication of E-mail is concerned, complaint itself shows that it was sent by some unknown person and there is nothing to show that E-mail was sent by any of these petitioners and, therefore, for the said E-mail, Section 500 IPC cannot be attracted against petitioners.
28. Now, we come to Section 66-D of Amendment Act, 2008. Section 66-D inserted in Act, 2000 which came into force on 05.02.2009 i.e. the date on which it was published in the Official Gazette. Section 66-D of Amendment Act, 2008 reads as under:-
"66D Punishment for cheating by personation by using computer resource---
Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees."
29. It applies where there is any cheating by personation but the entire contents of FIR make no allegation of cheating of Informant/Complainant by personation, therefore, Section 66-D of Amendment Act, 2008, ex facie has no application.
30. We may also place on record that Amendment Act, 2008 has been enforced with effect from 27.10.2009 by notification issued by Central Government under Section 1(2) of Amendment Act, 2008.
31. Learned Senior Counsel appearing for respondent-4 however, contended that in an internationally recognized temple of a professional education, the faculty members of higher caste have ill-treated and ridiculed colleague faculty member of outburst caste i.e. Scheduled Castes, hence, in such a matter, this Court should not interfere in Criminal Misc. Writ Petition under Article 226 and the matter should be left for trial.
32. We do not find that the above submission is correct for the reason that if no offence is made out, even if what is stated in the FIR is treated to be correct then no person can be allowed to unnecessarily suffer the trauma of criminal trial.
33. In view thereof, we are satisfied that no offence under the sections in which report has been registered are made out even if allegations stated in FIR are taken to be correct ex facie and that being so, criminal proceedings initiated against petitioners cannot be said to be justified.
34. In the result, writ petition is allowed. FIR dated 18.11.2018 registered as Case Crime No.1283 of 2018, under Sections 500 IPC, Section 66D of Amendment Act, 2008 and Section 3(2)(va) of Act, 1989, at Police Station Kalyanpur, District Kanpur Nagar and also subsequent proceedings thereto are hereby quashed.
Order Date :- 5.3.2020 Siddhant Sahu